Delhi District Court
State vs . Balram @ Pappu on 9 April, 2010
FIR No. 172/02
P.S Bawana
Page no.1
IN THE COURT OF SHRI DEEPAK WASON
METROPOLITIAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 172/02
U/s. 61/1/14 Excise Act
PS: Bawana
State vs. Balram @ Pappu
Date of Institution of case:-22.11.02
Date of Judgment reserved:- 09.04.10
Date on which Judgment pronounced:- 09.04.10
JUDGMENT
Sl. No of Case :655/3 Date of commission of offence :26.06.02 Name of complainant :Ct. Babu Lal, no.2520/NW, P.S Bawana, Delhi.
Name and address of accused :Balram @ Pappu, S/o. Sh. Rajpal, R/o. House no. 43/5, B-Block, Shahbad Dairy, Delhi.
Offence complained of :61/1/14 Punjab Excise Act.
Plea of accused :Pleaded not guilty Date of order :09.04.2010 Final order :Acquitted BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under:-
The accused has been sent to face trial under Section 61(1) of Punjab Excise Act, 1914 on the allegations that on 26.06.02 at about 9.45 p.m., at D-Block Chowk, Contd..../-FIR No. 172/02
P.S Bawana Page no.2 Jansewa Hospital, Shahbad Dairy, Delhi, he was found in possession of one plastic cane which when measured came equal to 28 bottles of illicit liquor without any permit or licence and on the basis of the said allegations, the present FIR bearing no. 172/02 was registered at Police station Bawana and the accused has been charged with the offences under Section 61(1) of Punjab Excise Act, 1914.
2. After investigation, charge sheet was filed against the accused. The copies of charge sheet were supplied to the accused in compliance of Section 207 Cr.P.C. and charge U/s. 61(1) of Punjab Excise Act, 1914 was framed against the accused to which he has pleaded not guilty and claimed trial.
3. The prosecution was thereafter given opportunity to prove the accusation against the accused and the prosecution has examined seven witnesses. However, the list of witnesses contain eight witnesses.
4. PW 1 is Head Constable Mahavir. He has proved the FIR Ex. PW 1/A. He was not cross examined by the accused.
Contd..../-
FIR No. 172/02P.S Bawana Page no.3
5. PW 2 is Constable Rajpal. He has deposited the sample i.e one bottle with form M-29 and RC to excise laboratory. He was not cross examined by accused.
6. PW 3 is Constable Babu Lal. He is the initial witness of recovery and has apprehended the accused with the illicit liquor. He has deposed about the investigation.
7. PW 4 is Constable Bharat Singh. He has proved the DD no.35 as Ex. PW 4/A.
8. PW 5 is Constable Surender Kumar. He is also the witness of initial recovery who apprehended the accused alongwith Ct. Babu Lal and deposed regarding the proceedings conducted by the IO.
9. PW 6 is Additional Sub-Inspector Krishan. He has proved the entry no.190/02 in register no.19 as Ex. PW 6/A.
10. PW 7 Additional Sub-Inspector Rajender. He is the IO of the case. He has deposed that on 26.06.02, on receiving DD no.33 PP Shahbad Dairy, went to the spot where he had met Ct. Babu Lal and Ct. Surender who Contd..../-
FIR No. 172/02P.S Bawana Page no.4 handed over the present accused alongwith case propety i.e one plastic cane to him. Thereafter, he conducted the proceedings of the present case i.e measured the illicit liquor, separated the sample, filled form M-29, sealed & seized the case property, prepared the rukka Ex. PW 7/A, got the FIR registered through Ct. Babu Lal, prepared site plan Ex. PW 7/C at the instance of Ct. Surender, arrested the accused vide memo Ex. PW 3/C, conducted his personal search vide memo Ex. PW 3/D and deposited the case property in the malkhana. He has further deposed that on 27.07.03, he has sent sample to Excise Laboratory through Ct. Rajpal vide RC no.55/21/02 and after receiving of the result, he has prepared the challan and filed the same in the court. He was also not cross examined by the accused.
11. No other witness was examined by the prosecution and accordingly, prosecution evidence was closed vide order dt. 03.02.10.
12. Subsequent to the recording of statement of witnesses, statement of accused under Section 281 Cr.P.C. was recorded and all the incriminating evidence coming on record was put to the accused in which he has submitted that he has been falsely implicated in the present case. He Contd..../-
FIR No. 172/02P.S Bawana Page no.5 has further submitted he does not wish to lead any defence evidence. Thereafter, the matter was posted for final arguments.
13. I have heard the final arguments advanced by Ld. Ld. APP for the state, Ld. Defence counsel as well as have gone through the record.
14. In the present matter, the accused has been charged U/s. 61(1) of Punjab Excise Act, 1914 and to convict the accused, the prosecution has to prove the ingredients of Section 61(1) of Punjab Excise Act, 1914.
15. In the present matter, it has nowhere come in the evidence of any of the witness that the IO has ever made effort to join any public person as he thought that he did not require any public person to join the investigation. In these circumstances like the present one, the police official should have made an effort to join public witnesses during the recovery proceedings and if public persons would have refused to assist the members of the police party, they could have served the said public witnesses with a notice in writing to join the police proceedings. This thing has not been happened in the present case.
Contd..../-
FIR No. 172/02P.S Bawana Page no.6
16. In case law reported as "Anoop Joshi Vs. State"
1992(2) C.C. Cases 314 (HC), High court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
17. In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses Contd..../-FIR No. 172/02
P.S Bawana Page no.7 from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for Contd..../-FIR No. 172/02
P.S Bawana Page no.8 non-joining the witnesses from the public is an after thought and is not worth of credence. All these facts taken together make the prosecution case highly doubtful".
Hence, in view of the law discussed above, it casts a shadow of doubt in the prosecution case.
18. Further, as per the deposition of PW 3 and PW 5 on 26.06.02, they were on patrolling duty at Jan Seva Hospital, D-Block, Shahbad Dairy meaning thereby that at the time they were not in the police station. Be that as it may, now if the said police officials were not present within the P.S. at the time of the alleged recovery and rather admittedly were outside the police station, then as per Punjab Police Rules, they being on duty were required to enter their departure & arrival to & from the P.S. Bawana in the D.D. Register of the said P.S. As per Chapter 22 Rule 49 of Punjab Police Rules, 1934:-
"22.49 Matters to be entered in Register No.II- The following matters shall, amongst others, be entered:-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal.
Note:- The term police Station will include all places such Contd..../-
FIR No. 172/02P.S Bawana Page no.9 as Police Lines & Police Posts where Register No. II is maintained.
19. Now, in the present case clearly the above said provision appears to have not been complied with in respect of the departure and arrival of PW3 and PW5 from and to the police station of Bawana. The prosecution has produced no evidence whatsoever on record in the nature of documentary evidence of the required D.D. entries, so as to establish the presence of PW3 & PW5 at or near the place of the recovery at on 26.06.02.
20. In the facts and circumstances of the case, the prosecution ought to have brought on record & prove the aforementioned DD entries by which the PW3 & PW5 had left the PS before the recovery and by which they had arrived at the P.S. after the recovery, so as to inspire the confidence of the Court regarding their joint availability/presence at the place of apprehension of the accused persons, since the said police officials were under bounden duty to enter their departure & arrival from/at the police station by making a D.D. Entry in that respect as per the aforesaid mentioned P.P. Rule.
21. At this juncture, it would be relevant to refer to a Contd..../-
FIR No. 172/02P.S Bawana Page no.10 case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court has observed that if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record & prove the above noted relevant DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on to the actions of the members of the police party effecting the alleged recovery.
22. In the present case, no efforts were made to hand over the seal after use to independent public persons. In such circumstances, the possibility of tampering the case property cannot be ruled out. In such cases, in view of Saifulla Vs. State reported in 1998 (1) CCC 497 (Delhi) and Abdul Gaffar Vs. State reported in 1996 JCC 497 (Delhi) benefit of doubt is to be given to the accused.
23. Further, when the case property produced before the court for the first time during evidence, it was observed Contd..../-
FIR No. 172/02P.S Bawana Page no.11 that the case property i.e plastic cane was filled up only one fourth. Hence, the possibility of tampering the case property cannot be ruled out and in such cases, benefit of doubt has to be given to the accused. These facts give some doubt in the prosecution story. In view of the lacunas discussed above, I hold that the prosecution story is doubtful.
24. In view of the above said discussion, I am of the considered view that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, the accused stands acquitted from the charges U/s. 61(1) of Punjab Excise Act, 1914.
25. His bail bond is cancelled and surety discharged. Endorsement if any, be cancelled and documents if any, be returned, against acknowledgment.
File be consigned to Record room after necessary compliance DEEPAK WASON METROPOLITAN MAGISTRATE ROHINI DELHI ANNOUNCED IN THE OPEN COURT TODAY i.e on 9th April, 2010.
Contd..../-